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New Supreme Court of Canada Ruling on What Constitutes a “Reasonable Expectation of Privacy”

New Supreme Court of Canada Ruling on What Constitutes a “Reasonable Expectation of Privacy”

A few years ago we reported on an important development in Ontario privacy law in a case called Jones v. Tsige, where the Ontario Court of Appeal recognized a new cause of action called “intrusion upon seclusion”.  We discussed how this can tie into former spouses’ desires to snoop on each other in a Family Law dispute context.

Recently, another important case – this time from the Supreme Court of Canada – expands on the nature and scope of the privacy rights to which all Canadian citizens are entitled.

In a criminal law case called R. v. Jarvis, the background facts involved a high school English teacher who surreptitiously recorded videos of female students using a camera hidden in a pen.  The recordings were of the students engaging in ordinary, school-related activities, in the common areas of the school.  Most of the videos focused on the students’ faces, upper bodies and breasts.  The students had not consented to being recorded and were unaware they were being filmed.

In the context of confirming the teacher’s conviction for the criminal offence of voyeurism, the court considered the question of whether the students had a “reasonable expectation of privacy” in this scenario. This was relevant because the offence of voyeurism is defined to be one where a person surreptitiously observes or makes a visual recording of another person for a sexual purpose when that other person is in circumstances that give rise to such a reasonable privacy expectation.

The Supreme Court in Jarvis noted that “privacy”, as it is ordinarily understood, is not an all-or-nothing concept. The question of whether this teacher’s surreptitious recordings were a breach of the students’ privacy required a review of the entire context in which they were made, and on a number of factors. These included the location, the students’ level of awareness, their relationship with the teacher, the manner in which the recordings were made, their subject-matter, the activity the students were engaged in when the footage was filmed, and any rules, regulations or policies that impacted the use of recordings.

The Court added that the crime of voyeurism was defined to include reference to the “circumstances” that gave rise to a reasonable expectation of privacy.  This suggested that elements of the offence are not governed solely by location, and it can be committed in public spaces, not just private ones.  This definition also allowed courts to take broader account an offender’s use of evolving recording technology when deciding whether the crime has been committed.

Importantly, the Court stated that in examining privacy expectations, it could reflect on and incorporate the huge body of prior case law under s. 8 of the Canadian Charter of Rights and Freedoms, which enshrines citizens’ rights against unreasonable search and seizure.  The Court in Jarvis concluded that it:

 … opened the door for the expansive history of s. 8 jurisprudence to inform privacy disputes in all areas of the law…

With that vast body of case law to draw from, the Court concluded that societal perceptions of when privacy can be expected are “informed by our fundamental shared ideals about privacy as well as our everyday experiences.”

Using this framework, the Court concluded that in all the circumstances the teenaged high school students would have had a reasonable expectation that they would not be recorded in the manner they were.  It upheld the teacher’s conviction for voyeurism.

Although Jarvis is a criminal law decision, it will no doubt inform issues around the law of privacy as they arise in other legal contexts, including Family Law disputes.

For the full text of the decisions, see:

Jones v. Tsige, 2012

R v. Jarvis, 2019 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

Lori Dubin joins the team at Russell Alexander Collaborative Family Lawyers

Lori Dubin is now an associate lawyer at Russell Alexander Collaborative Family Lawyers. She is recognized for her client-centered approach and efforts to provide practical and efficient advice in order to achieve the best possible results. She has extensive experience in resolving high conflict cases and successfully settles most of her cases prior to trial.

Lori has practiced law for over 15 years. Prior to working in family law, Lori had 11 years of experience as a criminal trial lawyer with a focus on crimes arising out of domestic relationships. During her academic career, Lori was the recipient of several scholarships based on her academic achievement at York University. She achieved magna cum laude in her final year of her Honours Bachelor of Arts degree program in Psychology and Mass Communications.

Lori studied for her LLB at Osgoode Hall Law School, graduated in 2003 and was called to the bar after a year of Articling for a prominent Toronto firm. She’s trained new lawyers at the Law Society of Ontario’s Law Practice Program, acted as an articling principle, adjunct professor at various institutions, and commentator on Court TV Canada. Lori is an active member of the Toronto Lawyers Association and the Toronto Family Law Association. She has served her community on numerous Legal Aid Panels and Pro Bono assignments.

Aside from working, Lori has a very active family and social life. She is a fitness enthusiast and loves dogs, especially her own toy poodle.

Welcome to the team, Lori!

 

 

Did Wife’s Lawyer Know of Husband’s Asset?  And Can Court Assume Wife Knew, Too?

Did Wife’s Lawyer Know of Husband’s Asset?  And Can Court Assume Wife Knew, Too?

In a family law decision called Anderson v. McWatt, the Ontario Court of Appeal addressed a narrow evidentiary point:  If one party is truly unaware of a certain fact, but his or her lawyer may have known about it, can a court impute that knowledge to the party?

The background facts involved a former couple who were interior designers with a successful business.  They started living together in 1980, married in 1989, and separated in 2000, after which point they became embroiled in a full 15 years of high-conflict litigation.

Part of that litigation involved apportioning the spouses’ respective interests in a commercial property in Toronto.  Just prior to their 1989 marriage the husband had bought the property, and led the wife to believe was owned by a development corporation that had been set up.  In reality, he put title in his own name only – a fact he did not reveal in his sworn affidavits and financial statements for over a decade after their 2000 separation.  The wife only learned of the true state of affairs in 2012.

The date of her awareness as to title was key:  One of the issues was the point at which her claim to the commercial property was barred under the two-year limitation period. Indeed, the wife amended her pleadings about two years after making the discovery, to add claim based in equity (i.e. claims for unjust enrichment and constructive trust);  however, if it could be shown she knew or should have known earlier, then her legal claim would be barred.

At trial, the judge confirmed that the wife herself did not actually know that the husband held title to the property until 2012, but ruled that she should have known in 2001.  This is because (as the judge concluded) her own lawyer seemed to know about it, based on some comments he made while questioning the husband in 2001.  The upshot of the lawyer’s comments was that the wife “may very well have a claim against the property” and that “We will make our claim as and when we feel we have sufficient facts to base it on.”

On later appeal, the Court of Appeal rejected the trial judge’s conclusion on this point.The lawyer’s statement did not prove that he – or by extension, the wife – knew the husband was the actual owner of the commercial property. At the time of that questioning in 2001 – and for the next decade – the husband had been hiding the facts of his ownership in his sworn court documents. The wife was allowed to rely on this false information, and her own lawyer’s indication that she “may” have a claim was not an admission sufficient to trigger the limitation period. In fact, the Court found that the wife did “all she reasonably could to determine the truth that the [husband] was concealing.”

For the full text of the decision, see:

Anderson v. McWatt, 2016

At Russell Alexander Collaborative Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Has Rob Ford Been Defamed?

RF jpg

Has Rob Ford Been Defamed?

It’s hard to escape the coverage of Mayor Rob Ford in the news these days, and perhaps it’s best not to even try. But while I will leave the political opinion and commentary to the experts and not-so-experts, one interesting aspect of the Mayor Ford Saga that got a little less media coverage is the question of defamation – and in particular whether the Mayor can take legal action against his former staffers for the information they gave police about his alleged cocaine use.

First, a little primer: In law, “defamation” occurs anytime there is some sort of communication that tend to lower a person in the estimation of others, or which tend to cause a person to be shunned or avoided, or else exposed to hatred, contempt or ridicule. The communication can be written, printed, or spoken, or else it can consist of audible or visible matters or acts.

So despite all posturing in the news, in order to succeed in his defamation accusations against his staffers Mayor Ford will have to legally prove three things:

• that the impugned words spoken by the staffers were defamatory, in the sense that they would tend to lower the Mayor’s reputation in the eyes of a reasonable person;

• that the words in fact referred to the Mayor; and

• that the words were “published”, meaning that they were communicated to at least one person other than Mayor Ford himself.

And here’s an important point: even if the statements by the staffers meet these three criteria, the Mayor’s defamation action will not succeed if the statements were true, if they amounts to “fair comment” or “responsible communication” on a matter of public interest, or if they are privileged.

On that last point: the concept of “qualified privilege” is something that the staffers could possibly raise in defence of any defamation action that Mayor Ford might choose to launch. As applied to these circumstances, they could very well claim that the information they gave police during their formal investigation fell within the category of communications that are not only legally and morally encouraged in our society, but are also actively protected by law – to the point where the staffers would be held immune from scrutiny and liability in any defamation action they may face.

So will Rob Ford succeed in his defamation action? Hard to tell. But one thing is for sure with the Mayor you can never know what to expect.

What do you think?

Share your comments below.

Where Do You Stay When You Are Staying in Toronto?

 

It is March break this week and many people take their kids Toronto for a short holiday.

Where are your favourite places to stay overnight when visiting Toronto?

Read our responses or submit your own plans or comments.

Become a Fan and join the discussion here: http://www.facebook.com/RussellAlexanderFamilyLawyers

 

 

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